NO. COA02-535
Appeal by defendant from judgment dated 2 November 2001 by
Judge Michael E. Beale in Richmond County Superior Court. Heard in
the Court of Appeals 30 December 2002.
Attorney General Roy Cooper, by Assistant Attorney General Kay
Linn Miller Hobart, for the State
Megerian & Wells, by Franklin E. Wells, Jr., for defendant
appellant.
GREENE, Judge.
Patrick Amil Monroe (Defendant) appeals from a 2 November 2001
judgment entered consistent with a jury verdict finding him guilty
of assault with a deadly weapon with intent to kill inflicting
serious injury.
The State presented evidence at trial tending show the
following: Defendant and the victim, Melinda Hailey (Hailey), were
in a relationship and lived together in a mobile home in Hoffman,
North Carolina. Hailey testified she and Defendant had been
arguing, and she was planning to move out. On 26 March 2001,
Hailey and Defendant had again been arguing because Defendant
wanted to take the car to a friend's home and Hailey would not lethim. Hailey left the home, taking some clothes with her, and went
to her father's home to tell her father she planned to move back in
with him. Later that evening, Hailey went to a friend's house. At
approximately 11:30 p.m., Hailey left her friend's home to stay
with her father. Passing her home that she shared with Defendant,
which was located between Hailey's friend's house and her father's
home, she noticed the lights were off and the door was open.
Hailey stopped and went inside the home, turned on the light, and
found Defendant sitting in a recliner in the hallway in front of
the front door. Hailey testified Defendant had been drinking,
appeared upset, and was holding a gun. Hailey testified the gun
belonged to her, and it was an AR-20 rifle.
Defendant asked Hailey if she was staying, and Hailey
responded “no.” Hailey then walked into her room, closed the door,
and locked it. Approximately ten seconds later, Hailey heard four
gunshots and felt “something hot in [her] back.” Hailey fell to
the floor, and Defendant came to the door and asked, “What
happened? Let me in.” After getting up and opening the door,
Hailey told Defendant she had been shot and asked him to take her
to the hospital. Hailey testified that she blacked out several
times but eventually Defendant did take her to the hospital.
Hailey had been struck by two bullets and suffered two collapsed
lungs.
On the way to the hospital, Defendant said to Hailey, “I
didn't do this to you, did I?” At the time, Hailey told him
“[n]o.” Hailey, however, testified she had said this “[b]ecause Iknew he had did [sic] it, and I was afraid that he might finish the
job.” On cross-examination, Hailey admitted to writing a note to
a friend stating she did not believe Defendant had shot her on
purpose. Testimony from Detective Williams, an investigating
officer, revealed an AR-20 rifle as being a semi-automatic weapon
and that “every time the trigger is pulled a shot is fired” unless
it has been modified into an automatic weapon. Detective Williams
also testified there were four bullet holes in the door to Hailey's
room with heights of four feet and one-quarter of an inch, four
feet, three and one-half inches, four feet four and one-half
inches, and five feet and three-quarters of an inch.
At the end of the first day of trial on 31 October 2001, the
court was adjourned to allow court personnel and the jury members
to go home for an opportunity to go “trick-or-treating” with their
children. The trial court stated: “You may want to get home so
[you] can be with them for any Halloween events that may be
occurring. And I imagine you want to go with them if you're going
to let them trick-or-treat in light of what has been going on.”
Defendant did not present any evidence. Following closing
arguments, Defendant requested the trial court, as part of the jury
charge, instruct the jury on the defense of accident. The trial
court found the defense of accident was not a substantial feature
of the case and denied Defendant's request, and the jury
subsequently returned a guilty verdict.
________________________________
The issues are whether: (I) the testimony of DetectiveWilliams about AR-20 rifles was relevant; (II) the trial court
erred in commenting on matters outside the record in releasing the
jurors to go trick-or-treating with their children; (III) there was
substantial evidence Defendant acted with the specific intent to
kill; and (IV) the trial court erred in failing to instruct the
jury on the defense of accident.
I
Defendant first argues the trial court erred by allowing
testimony from Detective Williams about AR-20 rifles. Defendant
contends the testimony concerning the AR-20 rifle did not tend to
prove anything about the shooting because the weapon that fired the
shots which hit Hailey was never found, and there was no evidence
that Hailey was shot with an AR-20 rifle. Furthermore, Defendant
argues because the State was allowed to introduce this testimony to
rebut the possibility of an accidental discharge, the testimony
tended to mislead and confuse the jury. We disagree.
“Admission of relevant evidence is a matter left to the sound
discretion of the trial court and will not be reversed except upon
a showing of abuse of discretion.”
State v. Carrilo, 149 N.C. App.
543, 552, 562 S.E.2d 47, 53 (2002).
Evidence is relevant if it has
the tendency to prove or disprove any fact that is of consequence
to the determination of the action.
See N.C.G.S. § 8C-1, Rule 401
(2001). Relevant evidence is generally admissible but may be
excluded if the probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or would
mislead the jury. N.C.G.S. § 8C-1, Rules 402, -403 (2001). In this case, Defendant has made no showing of any undue
prejudice, confusion of the issues, or that the jury was misled by
admission of the testimony. Detective Williams testified the AR-20
rifle was a semi-automatic weapon, meaning “every time the trigger
is pulled a shot is fired.” Hailey testified Defendant was holding
an AR-20 rifle when she entered the mobile home. Hailey went into
her room, and shortly thereafter heard four gunshots and felt
“something hot” in her back. Detective Williams' testimony was
relevant to Defendant's intent, as it tended to show Defendant
would likely have to pull the trigger each time the gun was fired,
and negated a possible defense of accident. The lack of evidence
Defendant actually fired the AR-20 rifle at Hailey impacts the
weight of the evidence, not its admissibility.
See State v. Lytch,
142 N.C. App. 576, 580, 544 S.E.2d 570, 573 (2001). Thus, the
trial court did not abuse its discretion in admitting the testimony
about AR-20 rifles.
II
Defendant next argues the trial court erred in adjourning the
jury after the first day of trial by commenting on matters outside
the record and thereby “shattered the atmosphere of judicial calm
and deprived [Defendant] of his right to a trial in an impartial
and unprejudiced court.”
“Every person charged with a crime is 'entitled to a trial
before an impartial judge and unprejudiced jury in an atmosphere of
judicial calm.'”
State v. Locklear, 349 N.C. 118, 143, 505 S.E.2d
277, 292 (1998) (quoting
State v. Carter, 233 N.C. 581, 583, 65S.E.2d 9, 10 (1951)).
“The bare possibility . . . an accused may
have suffered prejudice from the conduct or language of [the trial
court] is not sufficient to overthrow an adverse verdict.”
Locklear, 349 N.C. 143-44, 505 S.E.2d at 292. The test for
determining prejudice resulting from a trial court's comments is
“the probable effect of the language on the jury.”
Id. This test
should be applied by considering the trial court's comments in the
light of the circumstances in which they were made.
Id.
Following the first day of trial, the trial court stated,
“[y]ou may want to get home so [you] can be with [your children]
for any Halloween events that may be occurring. And I imagine you
want to go with them if you're going to let them trick-or-treat in
light of what has been going on.”
Defendant argues the trial
court's statement was a clear reference to the terrorist attacks on
11 September 2001 and “served to call attention to the general
atmosphere of fear and violence in the country at the time.”
Defendant contends the trial court disrupted the “judicial calm” by
referencing the terrorist attacks on 11 September 2001. Defendant,
however, has failed to allege how this reference prejudiced his
case. The trial court did not make any comment on the merits of
the case. The trial court was simply recognizing that it was
Halloween, and some of the members of the jury might have children
and planned to accompany their children trick-or-treating in light
of the situation in the country at the time. In fact, the trial
court did not even specifically mention the terrorist attacks.
There is nothing in the record to show any possible prejudicialimpact on the jury resulting from the trial court's comment. Thus,
Defendant has failed to meet his burden of establishing that the
remarks were prejudicial.
See State v. Green, 129 N.C. App. 539,
545, 500 S.E.2d 452, 456 (1998)
,
aff'd, 350 N.C. 59, 510 S.E.2d 375
(
1999) (per curiam).
III
We next consider whether there was sufficient evidence to
support the conviction for assault with a deadly weapon with intent
to kill inflicting serious injury. Specifically, Defendant argues
the State failed to prove he had the specific intent to kill
Hailey, and therefore his motion to dismiss should have been
granted.
To survive a motion to dismiss, the State must present
substantial evidence of each essential element of the charged
offense.
State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434
(1997). “Substantial evidence is relevant evidence that a
reasonable mind might accept as adequate to support a conclusion.”
State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). The
evidence must be viewed in the light most favorable to the State,
and the State is entitled to every reasonable inference that is
drawn therefrom.
State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d
649, 652-53 (1982). The essential elements of an assault with a
deadly weapon with intent to kill inflicting serious injury are:
“(1) an assault, (2) with a deadly weapon, (3) with intent to kill,
(4) inflicting serious injury, and (5) not resulting in death.”
State v. Wampler, 145 N.C. App. 127, 132, 549 S.E.2d 563, 567(2001). Usually, intent to kill must be proven using
circumstantial evidence of surrounding facts by which intent to
kill may be inferred.
See State v. Alexander, 337 N.C. 182, 188,
446 S.E.2d 83, 86-87 (1994). An intent to kill may be inferred
from the nature of the assault, the manner in which it was made,
the weapon used, and other surrounding circumstances.
Id.
In this case, the evidence viewed in the light most favorable
to the State shows Defendant and Hailey had been arguing, and
Defendant was angry because Hailey was moving out of their home.
Before the shooting, Defendant was sitting in a chair holding an
AR-20 rifle. Seconds after entering her room and closing the door,
four gun shots were fired at heights between four and just over
five feet through the door into the room Defendant knew to be
occupied by Hailey. Detective Williams testified a semi-automatic
weapon, like the one Defendant was holding, fires one shot each
time the trigger is pulled. From these facts, it may be inferred
Defendant had the specific intent to kill Hailey. Thus, a jury
could reasonably conclude Defendant had the specific intent to
kill.
IV
Defendant finally argues the trial court erred by failing to
instruct on the defense of accident.
A trial court has a duty to instruct the jury on all
substantial features of a case arising from the evidence.
State v.
Garrett, 93 N.C. App. 79, 82, 376 S.E.2d 465, 467 (1989). All
defenses arising from the evidence are substantial features of thecase and therefore the jury should be instructed on them.
Id.
In this case
, the trial court found the defense of accident
was not a substantial feature of the case. Specifically, the trial
court noted there was “no other direct or circumstantial evidence
that would lead any fact-finder to find -- or to believe there was
any type of accident in this case.” We agree. Defendant did not
put on any evidence, and the only evidence arguably supporting a
defense of accident was Detective Williams' testimony the AR-20
rifle could be converted into an automatic weapon capable of firing
multiple shots with one pull of the trigger and the victims'
admission of a previous out-of-court statement stating she believed
Defendant shot her accidentally. There was, however, no evidence
the AR-20 rifle at issue in this case had been converted to an
automatic weapon. Detective Williams' statement was used instead
to show the victim's belief at the time, not to prove the shooting
was accidental. Thus, the defense of accident was not a
substantial feature of the case. Accordingly, the trial court did
not err by refusing to instruct the jury on the defense of
accident.
No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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